ML20237C275
| ML20237C275 | |
| Person / Time | |
|---|---|
| Site: | South Texas  |
| Issue date: | 12/13/1987 |
| From: | Murley T Office of Nuclear Reactor Regulation |
| To: | Citizens Concerned About Nuclear Power, INC. |
| Shared Package | |
| ML20237C243 | List: |
| References | |
| 2.206, DD-87-20, OL, NUDOCS 8712210218 | |
| Download: ML20237C275 (10) | |
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4 DD 20 UNITED STATES OF AnF.RICA NUCLEAR REGULATORY COMMISSION OFFICE OF NUCLEAR REACTOR REGIT!ATION In the Matter of )
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HOUSTON LIGHTING AND POWER ) Dothet Nos. '50-498 OL COMPANY ) 50-499 OL
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(South Texas Project, Units 1 ) (10 C.F.R. S 2.206) and 2) )
DIRECTOR'S DECISION UNDER 10 C.F.R. $ 2.206 INTRODUCTION On May 29, 1987, Lanny Sinkin, on behalf of Citizens Cone:erned About Nuclear Power, Inc. (CCANP or petitioner), filed a motion before the Commission requesting that the record in the South Te:as Nuclear Project (STNP) licensing hearings be reopened and that fuel loading, then scheduled for June 1987, be suspended pending resolution of the matters described in the motion. By Memorandum and Order dated July 24, 1987, the Commission denied the request for a stay of fuel loading and referred the remainder of the motion to the staff for consideration under 10 C.F.R. S 2.206. M In its motion, entitled "Intervenor Citizens Concerned About Nuclear Power, Inc. Motion to Reopen the Record," the petitioner asserted that the Atomic Safety and Licensing Board (AStB or Licensing Board) 1_/ The Office of Nuclear Reactor Regulation authorized a low power license for STNP Unit 1 on August 21, 1987.
N B712210218 871213 A ADOCK 05000498 eF pA !
decisions with regard to STNP should be altered. The petitioner asserted as grounds for this request that, based upon testimony given by NRC witnesses during hearings commencing on April 9,1987 before the Senate Committee on Governmental Affairs, there is evidence of intimidation and harassment of NRC personnel in Region IV which sheds doubt on the credibility, accuracy, and objectivity of the testimony presented by NRC personnel in the operating license proceeding on which the Licensing i
Board relied in reaching its decisions. l By letter dated August 27, 1987, the petitioner was informed that its petit!on would be treated under 10 C.F.R. 5 2.206 of the Commission's regulations and that a decision would be issued within a reasonable amount of time.
The evaluation of the matters raised by the petitioner have now been !
completed, and for the reasons stated in this Decision, the petitioner's request is denied.
DISCUSSION A brief historical review is helpful at this point in order to respond to the petitioner's concerns.
An Atomic Safety and Licensing Board conducted hearings involving the application for operating licenses for the South Texas Nuclear Project, Units 1 and 2 by Houston Lighting & Power Company (HL6P), the City Public Service Board of San Antonio, Central Power and Light Company, and the City of Austin, Texas (hereinafter referred to collectively as the applicants). HL&P was the lead applicant, and was designated the !
responsibility for constructing and operating the plant. This proceeding L_________________-___-__-----___- - - - - - -
A was divided into three phases. The first phase included various contentions that bear on the managerial character and competence of HL&P l to operate nuclear facilities. The interveners in that proceeding included the petitioner here, CCANP. SI As a result of information that was I revealed during the course of the Phase I hearings--particularly (1) the issuance of the Quadrex Report, a consultant's study that was extremely 1 critical of the design-engineering efforts of HLSP's contractor, Brown 6 Root, Inc. (B6R), and (2) the subsequent replacement of B6R by new I
contractors--the ASLB was not able to complete the record on the l
character and competence issues. The ASLB deferred to Phase ll those issues that were not resolved in Phase I, 3,/
In Phase 11, the ASLB considered five additional issues related to i
character and competence, one issue related to the applicants' quality !
assurance program for operation, and a contention dealing with the design and construction of the STNP to withstand hurricanes. S The ASLB found that, subject to certain caveats , HL&P possessed adequate managerial character and competence for the applicants to be granted operating licenses for STNP Units 1 and 2. !
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~ The only other intervenor besides CCANP was Citizens for Equitable Utilities, Inc. (CEU). CEU withdrew from the proceeding prior to the Phase I hearings.
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~ Houston Lighting and Power Co. (South Texas Nuclear Project, Units 1 and 2), LBP-84-13,19 NRC 659 (1984); aff'd in part, ALAB-799, 21 NRC 360 (1985); review declined by Commission, letter dated July 30,1985.
-4/ Houston Lighting and Power Co. (South Texas Nuclear Project, Unit <.,
1 and 2), LBP-86-15, 23 NRC 595 (1986).
In Phase III, two aspects were considered.related to the contention
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dealing with the adequacy of the design . and construction of STNP to withstand hurricanes and hurricane missles. El In -its Partial Initial Declsion for Phase III, the ASLB authorized the staff to issue licenses- '
l permitting fuel loading and power operations upon . completion of its I technical review. 5/
On October 8, 1986, the Atomic Safety and Licensing Appeal Board, sua sponte, reviewed and affirmed the last two of the Licensing Board's !
decisions, ALAB-849, 24 NRC 523 (1986). The Commission did not a
review the Appeal Board's decision, and it became 6 final agency decision in December 1986.
On April 9, 1987, Senator.. John Glenn, Chairman of the. Senate Committee on Governmental Affairs, held hearings to examine, among i
other matters, the conduct of certain NRC actions, none of which is -j directly related to the South Texas Nuclear Project.
1 The thrust of the petition is that, based on the statercents made by a number of individuals before this Committee of Congress, the validity of the testimony heard and certain other information considered by the ASLB in the South Texas hearing is brought into question. The petitioner suggests that both the staff's testimony and a response filed by the staff (treated by the ASLB as a response to a motion for sun: mary disposition)--
may be biased as a result of undue influence by NRC management at j
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-5/ ilouston Lighting and Power Co. (South Texas Nuclear Project, Units 1 and 2), LBP-86-29, 24 NRC 295 (1986).
6/ Id. at 318,,
Region IV and/or Headquarters. For this reason, the petitioner requests that further hearings be heict to permit examination of all NRC witnesses testifying in the South Texas proceeding as well as of other witnesses who provided information to the NRC's Office of Inspector and Auditor (OIA) investigator,' Mr. George Mulley. 7I For the following reasons, the relief requested is denied.
The only testimony referenced by the petitioner that was given before the Senate Committee on Governmental Affairs which is arguably pertinent to the relief sought by the petitioner is that given by Messrs.
H. Shannon Phillips and George Mulley. 8_/ However, their testimony, as well as the OlA investigation which was the subject of their testimony, both pertain to circumstances arising in connection with the Comanche Peak Steam Electric Station, another facility located in the State of Texas 7/ In March 1986, OIA initiated an investigation concerning allegations by an NRC inspector, Mr. H. Shannon Phillips. Mr. Phillips had alleged that he had been intimidated and harassed by his superiors in the NRC's Regico IV for reporting safety problems. Mr. Mulley and Mr. Phillips subsequently testified before the Senate Committec on Governmental Affairs regarding this investigation at the April 9 i hearing.
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8/ The petitioncr also provides excerpts of statements by Senator Glenn, Julian Greenspun, who, as Deputy Chief of Litigation in the General Litigation section of the Criminal Division of the Department of Justice, had supervised the prosecution of criminal violations of NRC regulations, and Ben Hayes, the Director of the NRC's Office of Investigations (01). These excerpts are general statements whic.h '
do not raise issues concerning the credibility of the eviaenco relied upon by the Licensing Board in reaching its decision in the South Texas proceeding, nor has the petitioner attempted to show how these statements relate to the South Texas proceeding. Absent such a showing, further action with regard to this testimony is not I warranted. 'See, ge.., Philadelphia Electric Co. (Limerick Gener-ating Station, Units 1 and 2), DD-55-11, 22 NRC 149,154 (1985).
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but being constructed by wholly different applicants than the South Texas Nuclear Plant.
Messrs. Mulley and Phillips have been consulted by NRC staff, and it has been determined that their testimony before Congress on April 9, 1987, was not intended by either to raise concerns about the South Texas Nuclear Project review performed by the staff. Mr. Phillips also confirms that neither the testimony that he gave in the South Texas pr iceeding as !
I a member of the NRC staff panel nor his inspection efforts at the South '
Texas facility v ere biased as a result of influence by either Region IV or Headquarters management. Like assurances have been obtained from i
Mr. Shewmaker and Mr. D. W. Hayes, the other members of the staff's I witness panel that testified in the South Texas proceeding.
With respect to the staff's testimony relating to the summary disposition ruling discussed by the petitioner, b no substantive reason is presented to question the veracity of the statements made under oath by j the staff witnesses. The essence of petitioner's assertions regarding this matter is that the staff " grossly abused the use of 'open items' to avoid )
1 writing up violations," so as not to hinder the applicants from obtaining operating licenses for STNP. However, no specific information regarding the South Texas Nuclear Project is given in the petition to support this assertion, which rests only cn the inferences drawn by petitioner from a
-9/ The ruling in question occurred when the ASLB granted summary disposition during the Phase il proceeding for the remaining manage-ment competence issues. CCANP had contended that summary disposition was inappropriate since all open items in ISE inspection reports constituted unresolved factual questions bearing on the adcquacy of Applicants' competence. LBP-86-15, 23 NRC 629-636.
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reading of the statements made before Congress. As discussed above, i Mr. Phillips, who was a principal inspector at the South Texas Nuclear
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I Project, has confirmed that both his testimony and his inspection efforts were unaffected by pressure from either Region IV or Headquarters i management. Thus, there is no reason to question the categorization of l i
deficiencies found as either open items or violations. I l
In addition, the Petitioner's' request does not seek to raise any new '
l substantive issue but, at most, requests an opportunity to challenge the credibility of the testimony and a summary disposition granted by the ASLB. This opportunity was already afforded in the context of the hearing held in the past. The petitioner, as a party to the proceeding, q l
had full opportunity to cross-examine every ' staff witness concerning the !
i preparation of his testimony to determine whether there ' was any bias which might affect the ' weight to which it was properly entitled. . And
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while the specific statements and views more recently made known through the OlA report and subsequent congressional testimony were not available to the petitioner at the time of the hearing, there is no reason given by the petitioner to believe that information regarding .NRC management i influence could not have been elicited at that time if it could be shown to be at all relevant to the South Texas proceeding, as opposed to Comanche Peak. Indeed, a review of the cross-examination of the staff panel, I i
which notably included one of the individuals who recently testified before I i
Congress (Mr. Phillips), reveals that the panel's credibliity was in fact !
questioned. See Transcript at 9872. Consequently, the credibility of the staff and the weight to be given its evidence was . considered by the Licensing Board in its decisions. With respect to the summary disposition i 1
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ruling cited by the petitioner, the ASLB had found that the petitioner had fa!!ed to provide any reasons why any particular open items should have been classified as a violation and had not even attempted to relate particular open items to the NRC criteria for violations. 23 NRC at 635-637. The record thus demonstrates that the petitioner failed to '
thoroughly pursue the open item issue at the time of the hearing in the South Texas proceeding, j l
The principle is firmly established that parties must be prevented I from using 10 C.F.R. 6 2.206 procedures as a vehicle for reconsideration I l
of issues previously decided. See General Public Utilities Nuclear Corp.
I (Three Mile Island Nuclear Station, Units 1 and 2; Oyster Creek Nuclear Generating Station), CLI 85-4, 21 NRC 561, 563-564 (1985) (citing cases).
i in this regard, the Commission's denial of a petition to review a
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Director's Decis!on under 10 C.F.R. 6 2.206 in Nothern Indiana Public Service Company (Bailly Generating Station, Nuclear-1), CLI-78-7, 7 NRC 429, 434 (1978), provides significant precedent. There, the Commission stated :
The Director properly has discretion to differentiate between those petitions which, upon examination, indicate that substantial issues have been raised warranting institution of a proceeding, and those which seek to reopen issues previously resolved, or those which serve merely to demonstrate that in hindsight, even the most thorough and reasonable of forecasts will prove to fall short of absolute prescience.
Here, nothing presented in the petition rises to more than mere specula-tion that, in connection with the South Texas proceeding, there may be some question as to the weight properly given to the staff's testimony end
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4 the granting of summary disposition; however, no substantial issues" j have been raised.
Ana, while not minimizing the significant role of the staff in the NRC's adjudicatory proceedings, even if it were shown with greater conviction that some doubt inay be present with respect to the weight I accorded the staff's evidence, the institution of a further proceeding for the purposes described in the petition is not compelled. The unques-tionable burden of proof with respect to matters in controversy in any j NRC licensing proceeding -(indeed, in regard to the entirety of the application for operating licenses) falls on the applicant. 10 C.F.R. l 1
& 2.732. Thus, under the circumstances described in the petition, to )
warrant the initiation of yet a further evidentiary proceeding as i
requested, the petitioner would have to demonstrate that a different
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result would have been reached by. the Licensing Board 'in spite of the {
l evidence of record adduced by the' applicant. Stated otherwise, a 1 i
petitioner would have to show tnat, but for the evidence given by the staff on those matters in controversy, the evidence presented by the {
applicant was insufficient to sustain its burden and thus the application should not be granted.
The standard for reopening hearings under 10 C.F.R. 6 2.206 would thus be the same as that for a motion to reopen under 10 C.F.R. S 2.734 (i.e., requiring a demonstration that a different result would be reached). In this instance, the petition simply speculates as to the applicability of the statements made before Congress concerning Comanche Peak to the South Texas proceeding and fails to establish how, even if applicable, these statements might have altered the outcome of the l
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proceeding. Such conjecture . falls ~ far short of_ the. requisite - factua7: i specificity which might provide a sufficient basis for action. See j Public Servicg Company of Indiana (Marble Hill- Nuclear Generating Station, Units 1 and 2); CLI-80-10, 11 NRC 438,_443 (1980).
1 CONCLUSION In sum, the petitioner has _ failed to provide any new evidence which ~
would warrant the relief which it has requested. Consequently, the.
petitioner's request is denied.
A copy of this Decision will be- filed with the Secretary for the Commission's review in accordance with 10 C.F.R. S 2.206(c) of the Commission's regulations. ,
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FOR THE NUCLEAR REGULATORY COMMISSION ;
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Thomas E. Murley, Director Office of Nuclear Reactor Regulati Maryland Dated this 13that Bethesda, day of December, 1987 l
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